Lawyered Up: How to tell when your child’s father has met with an attorney about your custody case

Posted on Dec 10, 2012 by Hofheimer Family Law

If I were representing a man who wanted to get primary physical custody of his child, I would tell him one main thing. I would tell him to remember that a custody case begins and ends with the best interests of the child factors, and that a mom’s downfall is usually with factor number 6.

Factor number 6, taken directly from Virginia Code Section 20-124.3, is “[t]he propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonable denied the other parent access to or visitation with the child.”

I would tell him to start asking to see the child a lot, and to gradually request more and more time. Ask for overnights, weekends, day trips, vacations, whatever—anything to get the child to spend more time with dad. The idea here is that, obviously, mom will say no, and then we’ve got an argument for the court that mom has unreasonably denied dad access to the child.

Thinking about these things makes me feel as though I’ve crossed over to the dark side, but I think it’s a good idea, from time to time, to try to think about things from the other side’s perspective. Sometimes it gives me new ideas about how to forestall problems before they occur, which can help maintain some peace of mind for my clients, and prevent any damage to the case that could occur if something unexpected happened and caused my client to have to make a rash, emotional decision.

When your child’s father starts asking for more time with the child, you’ll have to work to find a happy medium. It’s never easy, but the court wants to see that the two of you are working together. Having access to both parents is in the best interests of the child—and that’s the primary concern of the court.

If your child’s father has lawyered up, you’ll be able to tell. He’ll start asking for more time, and he’ll probably ask for some things you’re not comfortable with. The clincher? He asks for these things in writing. Why? Well, he wants to have a written record to show to the judge of all the times he’s asked for visitation with the child and you have “unreasonably” denied him.

When he asks for something that you’re not comfortable with, suggest an alternative. For example, if he says, “I’d like to take Mackenzie to Hooters this Thursday night for all you can eat wings,” you could say, “I think it’s great that you’d like to take Mackenzie to dinner! I don’t think Hooters is appropriate. Chick-fil-A is her favorite, why not take her there?” Then, you have a written record, too—of a request that was inappropriate, and the opportunity you gave him to modify his plans with something more appropriate. This approach can apply equally well in many different circumstances. Even if what he’s asking isn’t as obviously inappropriate as a trip to Hooters, it’s important that the court is able to see that you are not denying access to the child. It’s normal for a father and a mother to have different values, and the court isn’t looking so much to judge whose values are most reasonable as to determine whether the best interests of the child are being met. By allowing access but with modifications, you protect yourself, protect your child, and promote your value set.

For a mom, factor number 6 can create some dangerous territory. Careful planning and strategizing can help you avoid some of the common pitfalls that affect women with custody cases.